P L D 1963 Azad J & K 33 (PLP)

(2) That even if the intention o1' the accused was to cause grievous hurt only on grave and sudden provocation, then the appropriate section for which he would have been convicted is section 335, A. P. C. and not 325 A. P. C. (3) That in the absence of the prosecution evidence it cannot be said that the offence could be constituted whether one under section 325 or 304, A. P. C, (4) That the trial Court had ignored the instructions of the High Court when it failed to furnish the accused with copy of the charge‑sheet. The accused is un‑represented before me, therefore, I called upon Messrs Sh. Abdul Haiy and Kh. Muhammad Shafi Advocates who happened to be present to. address the Court amicus curiea in the matter of reference. The learned Government Advocate supports the reference. Sh. Abdul Haiy Advocate amicus curiea also supports the reference. His argument is that the charge against the accused was one under section 304, A. P. C. and that he had not admitted the charge under section 304, A. P. C. but had admitted only having committed an offence under section 325, A. P. C. Therefore, the admission could not be said to be an admission of guilt and conviction could not be recorded under section 243, Cr. P. C. Kh. Muhammad Shafi Advocate amicus curiea has, however, argued that since the case as disclosed in the copies of the statements recorded under section 161, Cr. P. C. is substan tially the same that has been put by the learned trial Magistrate to the accused, though it is not the case as put in the charge‑sheet or in the F. I. R., the case that would have emerged at the end of the trial would have been the same that .has been put to the accused by the trial Court. His contention is that in the circumstances, the order of conviction and sentence is proper. The following questions were asked from the accused in his examination under section 242, Cr. P. C.:‑ "The accusation against you is that you on 10‑5‑62 gave a stick blow on the head of Ismail while he was committing adultery with your wife Bagaman in your house and you gave more stick blows to him with the stick which was lying in your room. Ismail died of the injuries inflicted by you whose dead body was subsequently recovered from the Nullah of village Leswah on 16‑5‑62." The reply of the accused is also reproduced below:- "The deceased was committing adultery with my wife. I struck with the stick which blow accidently landed on his head and he died. Then I threw his dead body into the Nullah." The next question put to the accused was that he should show cause why he should not be punished to which he replied that he had sinned otherwise he did not want to murder Ismail. The case put by the learned A. D. M. to the accused is that he had struck a blow on the head of the deceased while he (the deceased) was committing adultery with his (the accused's) wife. But this is not the case of the prosecution as disclosed in the F. I. R. or in the Parcha Challan (charge‑sheet). In the F. I. R. which was lodged by Ghulam Mustafa, the son of the deceased, it is put down that his father, the deceased, had entered the house of Muhammad Yaqub, the accused, on 10‑5‑62 but he was not traceable after that, and that after search he had found the dead body in the Nullah on 16‑5‑

62. Ghulam Mustafa expressed his doubts in the F, I. R. that the accused had murdered his father since there was an old quarrel between them. In the Parcha Challan also it is entered from the mouth of Ghulam Mustafa, the son of the deceased, that his deceased father had illicit relations with the wife of the accused, therefore, the accused had murdered him. The case of the prosecution as disclosed in the F. I. R. and in the charge‑sheet (Parcha Challan) is not that the accused had found the deceased' committing adultery with his wife and had in that condition given him the blow on the head which resulted in his death. In the F. I. R. grave doubts have been expressed that the accused had com mitted the murder and in the Parcha Challan, it is put down that the father of Ghulam Mustafa had illicit relations with the wife of the accused, therefore, he has murdered the deceased. Nowhere the prosecution has admitted that the accused had found the deceased in the act of committing adultery with his wife and had killed him under grave and sudden provocation. This may be the case of the accused but this certainly is not the case of the prosecution at this opening stage. The learned trial Magistrate in his explanation dated 3‑8‑62 has stated that he had looked into the P. W.'s statements recorded under section 166, Cr. P. C. and from there he had gleaned the prosecution case that the accused had found the deceased com mitting adultery with his wife. While examining the accused under section 242, Cr. P. C. it is not permissible for the trial Court to look into the statements recorded under section 161 Cr. P. C. The case of the prosecution as disclosed in the F. I. R. or in the Parcha Challan should be put to the accused. State ments under section 161, Cr. P. C. are not substantial evidence. They are available only for purposes of contradicting the P. W.'s testimony tendered at the trial, by drawing their attention towards their earlier statements made before the police but then we should not forget that statements of the prosecution witnesses recorded by the police under section 161, Cr. P. C. cart help the accused only if they are duly proved. Unless the discrepancies appearing in the statements recorded under section 161, Cr. P. C. are duly proved, they are not to be accepted as the true version given by the witnesses at an earlier stage. As regards the failure of the trial Court to furnish the accused with the copy of the charge‑sheet, I may point out that the High Court's instructions on this point are for the benefit of the accused. If a copy of the charge‑sheet is not supplied to the accused, it is the accused, who may complain, if he is prejudiced, the prosecution cannot take advantage of this lapse. The Challan was put in into the Court on 1‑6‑62 and the learned trial Magistrate furnished the accused with the copies of the statements record under section 161, Cr. P. C. and then adjourned the case for recording, his statement on 5‑6‑

62. A copy of the summary recorded on the Parcha Challan or a copy of the F. I. R. should also be furnished to the accused in compliance with the High Court's notification to minimize the inconvenience and hardship that may be caused to the accused by the introduction of the summons case procedure in all cases. The words used in the statement of the accused are: which means he has committed a sin. The sin is not the same as an offence. The accused has not admitted that he has committed the offence. I think that the admission made by the accused does not amount to an admission of guilt. Any‑how, the learned trial Magistrate has put to the accused a case different from the case of the prosecution while examining him under section 242 Cr. P. C. Therefore, I accept the reference and setting aside the order of conviction and sentence passed upon the accused, remand the case back to the trial Court for retrial according to law. I may mention here that I refrain from entering into the controversy whether what and if any offence is constituted by the facts of the prosecution case so as not to prejudice the opinion of the trial Court one way or the other. It is harvest time, therefore, the accused is directed to attend the Court of the A. D. M. Muzaffarabad, on 1‑11‑1962. The accused is on bail. He shall remain on bail till the conclusion of the trial before the A. D. M. K. B. A./A. H. Reference accepted.